Sunday, October 07, 2018

The "All of the Above" Approach to Justice Kavanaugh

by Michael C. Dorf (cross-posted on Take Care)
[Non-spoiler Alert: This essay discusses the tv series The Americans, but it should not ruin the viewing experience of any readers who intend to watch it.]

In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.

That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.

Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate's confirmation of Kavanaugh, maybe it's time for us to find a new field -- commercial law, perhaps -- in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.

Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it's not exactly as though we lack experience making lemonade from lemons. That's the path of Elizabeth: put your head down, and do your job.

Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it's business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.

After Donald Trump's surprise victory in the 2016 presidential election, I wrote a glass-half-full column in which I tried to assure my friends (and myself) that life under Trump would be bad but not appreciably worse than it would have been under a generic Republican president. Re-reading that column today, I see that I underestimated the commitment of Trump and his followers to the Trumpiest elements of his program -- especially the Muslim ban and gratuitous cruelty to undocumented and documented immigrants alike. I also underestimated the impact of the forces that would be unleashed by the shift from standard Republican dog-whistles to Trump's uncoded racism ("very fine people on both sides").

Duly chastened by my failure to foresee the full scope of Trump's awfulness, I nonetheless would note the many awful things Trump has done that are more or less standard Republican fare: gutting environmental regulation and the Affordable Care Act; leaving the Paris climate accord and the Iran nuclear deal; signing tax legislation skewed to the wealthy in ways that will starve progressive programs in the future; filling judicial vacancies with far-right jurists; and so on. A President Rubio or Kasich would have sounded considerably more moderate; as a substantive matter either of them might have softened one or two of the details and would not be in thrall to Putin; but overall, the policy awfulness of the Trump administration is mainstream Republican awfulness.

The analogy to Kavanaugh is striking. In a nearby parallel universe in which the president had nominated a roughly equally conservative federal appeals court judge to fill the vacancy created by Justice Kennedy's retirement, the Senate would likely have confirmed that judge by a slightly wider margin than Kavanaugh's 50-48 squeaker: something more like the 54-45 vote for Justice Gorsuch. That parallel-universe new justice would not vote exactly the same way as Justice Kavanaugh will in all cases, but the big-picture would be no different. In the parallel universe as in our own, John Roberts would be the median justice until any new vacancies open.

The differences between Kavanaugh and the other potential nominees that the president was considering are much like the differences between Trump and Rubio or Kasich. Like Trump, Kavanaugh has been credibly accused of sexual assault, he has exploded in petulant rage, and he has shown little regard for truth. And as with Trump, fellow Republicans issued somber statements expressing concern but when push came to shove, voted with their team.

There is, however, a key difference between Trump and Kavanaugh. Trump's character flaws are nearly always visible. He can contain his rage for a few days when his aides hide his smartphone or distract him, but his true colors inevitably emerge. Kavanaugh, by contrast, appears to be two people.

For most of his public life and especially since serving on the federal bench, Kavanaugh has been a model of professionalism, deeply conservative to be sure, but courteous, friendly, and engaging. His Wall Street Journal op-ed was profoundly incomplete and self-serving, but the picture he painted of himself as someone who was well-liked by fellow judges, clerks, students, and law faculty across the political spectrum was broadly accurate. Even as I opposed Kavanaugh's confirmation based on his substantive views, until recently I had the same impression of him. I wrote in August that I would be "happy to stipulate to" Kavanaugh's "conscientiousness, intelligence, and personal decency." I added that "I would be delighted to support him for a position on my faculty."

That's one face of Brett Kavanaugh, but there is another. He was a belligerent drunk in his teens and twenties. He was a partisan GOP crusader in his thirties. During his meltdown before the Senate Judiciary Committee on September 27, Kavanaugh revealed that the belligerence and partisanship still live within him. As former Yale Law School Dean Robert Post observes: "For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger, a haunting reminder that behind the smiling face of judicial benevolence lies the force of an urgent will to power."

Post is right that "judicial temperament is not like a mask that can be put on or taken off at will." And yet, I tend to think that, without the pressure of a direct accusation, as a justice, Kavanaugh will succeed in masking his demons where Trump, as president, has failed in masking his. Lawyers will call Kavanaugh "your honor." Many of the faculty on law schools where he is no longer welcome as an instructor will send him fawning letters in support of clerkship applicants. And his colleagues, who have no choice in the matter, will treat him in the same respectful way that they treat each other.

The question for those of us who concluded that Kavanaugh is temperamentally unsuited to sit on the bench is whether we should nonetheless continue to play along. Should we, like Elizabeth Jennings, maintain a commitment to the cause -- here the notion of the Supreme Court as a non-partisan institution? Or should we follow Philip's example and move on to other endeavors? Is there some other course?

The answer is all of the above. A seemingly far-afield example may be useful as a comparison.

Most of my work focuses on constitutional law, but I also have some experience as an advocate for the cause of animal rights. Like other justice movements, the movement to promote the interests of non-human animals faces internal conflicts. Some people (including me) favor abolition of animal agriculture and nearly all forms of exploitation of animals. Others favor less inhumane methods of animal exploitation but not abolition. Even among those who favor abolition as the ultimate goal, differences about tactics and strategy are prevalent: Do welfarist legal measures like minimum cage sizes for hens and sows raise consciousness and thus hasten abolition, or do such measures simply further entrench acceptance of animal exploitation? In Chapter 5 of our book Beating Hearts: Abortion and Animal Rights, Sherry Colb and I find that the existing empirical evidence is inconclusive but that there are reasons to be skeptical of meliorism as a path to ending animal exploitation. Nonetheless, we acknowledge that our analysis serves mostly as a guide for individuals deciding how to spend their time, not as a prescription for the movement as a whole. No one can guide a movement as a whole.

That lesson holds for Kavanaugh as well. Professors, lawyers, activists, and citizens must decide for themselves whether and if so how Kavanaugh's confirmation affects how they teach, make arguments, organize, and think about the Court. It presents questions of principle and tactics. Different people playing different roles will resolve such questions differently. Collectively, the response to Kavanaugh will be multifaceted, messy, and somewhat contradictory.

Kavanaugh's presence on the Court despite credible allegations of sexual assault will serve as a potent focal point for the #MeToo movement. So will the Senate Republicans' willingness to whitewash and ignore the allegations' seriousness. #MeToo activists will protest Kavanaugh and the Court. They will engage in what sophisticated observers will regard as futile or even counterproductive efforts to impeach Kavanaugh and perhaps Clarence Thomas as well.

Meanwhile, public interest lawyers and others will have little choice but to pretend that everything is normal, at least as advocates. If you have a client before the Supreme Court who faces execution, deportation, the loss of health care, or some other serious consequences, what are you supposed to do? Should you refuse to answer questions Kavanaugh poses at oral argument? Should you imitate his own behavior by angrily asking his questions back at him? To avoid having to make that call, should you refuse to file a cert petition? Any of these courses of action would be a disservice to your client and probably legal malpractice. Some people have no real choice but to act as though nothing has changed.

Still others will try to steer a middle course full of awkward compromises. A liberal law professor asked by a first-rate conservative student to provide a recommendation for a clerkship with Kavanaugh might agree to do so but might also protest a campus speech given by a senator who voted for his confirmation. In teaching constitutional law, one might supplement the usual materials with additional ones that emphasize how the countermajoritarian Supreme Court turns out to be a product of constitutional flaws that make the other branches of government undemocratic as well.

All of these approaches and more will be on display in the coming weeks, months, and years. Some will succeed and others will fail, but there is no point in agonizing over the right way to respond to the new reality. We will never agree on a single approach. An all-of-the above strategy is both sensible and inevitable.

12 comments:

Prior to the Kavanaugh confirmation one could say that one of the stalwart aspects of American life was respect for the law. On all sides of the political divide once the Supreme Court issued a decision it was accepted as the law of the land. For example once same sex marriage was ruled a fundamental right the opposition withered and in this coming election and future ones it is not and will not be an issue. Similarly, once the Court determined that George W. Bush was elected President the nation accepted that ruling. No major group refused to accept his authority as POTUS.

The ascension of Kavanaugh to the Court risks rupturing this bond between the people and the law. A 5 to 4 decision in a seminal case that is in opposition to broad public opinion with Kavanaugh in the majority may well be rejected by the losing side. It would not matter as Mr. Dorf points out, that another conservative Justice would have voted the same way. The fact that a deciding vote was cast by an individual who is on the Court despite credible accusation of sexual assault, despite an incomplete FBI background investigation, despite the partisan uncontrollable anger and arrogance and sense of entitlement he displayed and despite the fact that he was confirmed on a purely partisan vote may well cause a part of the nation to reject the rule of law. This is the great danger posed by Kavanaugh.

Mr. Dorf also nominates the CJ, Mr. Roberts as the “median Justice” which in itself is an uncertain prospect. But the current situation is not static, the composition of the Court is a dynamic process. At some near time in the future there will be a vacancy caused by the retirement or incapacitation of Justices Breyer or Ginsburg, or possibly both. If this happens with a Republican President and a Republican Senate the new Justice will be a Thomas/Alito/Gorsuch/Kavanaugh clone and any role the CJ has to play in moderating the Court or respecting precedents will cease to exist. That is the real danger, not that things are bad, but that they can get worse, much worse.

In that situation Mr. Dorf and others of his profession will have to face the dilemma of continuing to teach Constitutional Law and Principles in an environment where that becomes fiction and wishful thinking divorced from reality because the Court follows a partisan political path in which Constitutional Law and Principles simply do not matter in their decisions.

Kavanaugh had a long history as a partisan [see, e.g., his efforts to "investigate" the Vince Foster suicide and to make Clinton suffer during questioning) and there was evidence he lied during his last confirmation process. His involvement in the case involving an undocumented teen wanting to have an abortion (and even Texas okayed it) was noted by a conservative leaning blogger as blatant gaming to seek out a seat on SCOTUS. He then repeatedly said things that appeared to be a lie in his confirmation hearing, even defenses saying it was only "unethical," not really perjury. But, it took the Dr. Ford stuff to change some minds.

I think the "kitchen sink" approach is appropriate here though tbh I'll disdain law professors who write fawning letters so their students can get a clerk spot. There are lots of other judges they can send their students to. Yes, a few slots more will arise if he is included, but it is fairly marginal. I realize people in front of the Supreme Court will have to "your honor" the guy as people have to call Trump by a label he is a sane world would not have. I do dream of some lost cause case where an advocate can avoid doing that.

Me? Not having to do that, I'm with those who want to de-legitimize the guy and continue to do all they can to do so. Some might tell Kagan et. al. that they don't want to hear any cute colleague stories about him either.

Long time between comments, but I tend to be in the 'burn it down' zone right now. Doesn't this prove the legal realists right in the end? Now american lawyers will be appealing to a court that was obviously and partisanly rigged to get a certain result. It's clear that was primarily about abortion, but each pro-corporate decision that comes out is going to be essentially preordained. Now, the legal realists argued that before, but now it's a bit more clear. Are you really doing your clients a service if you argue a case to a rigged court? Shouldn't you just tell them that they're going to lose (or win - depending on who they are) and save them the money?

I read Mike's post last night, just before planning to go to sleep, a mistake for a geezer with sleep problems. I thought of earlier posts I had read by Sandy Levinson, Jack Balkin, Marty Lederman, Robert Post, and others, on the confirmation of now Justice Kavanaugh. Earlier this morning in making my daily Internet rounds, there were even more laments (to put it mildly). So maybe it's time to take a deep breath, even though the stench may be horrible, and take the:

JUSTICE KAVANAUGH KWIZ

a) Is Kavanaugh the last straw? [ ]

b) Or temporary shock and awe? [ ]

c) Or permanently above the law? [ ]

d) All of the above? [ ]

e) None of the above? [ ]

Justice K now has the job. I'm reminded of the Saturday back in the Fall of 1954 when I had received in the mail a letter that indicated I had passed the MA Bar Exam I had taken in July shortly after graduation from law school. My Dad came home from work late in the afternoon and I blurted out "Dad, I'm going to be a lawyer!" He was of course pleased and we hugged. Following a short silence that seemed forever, my Dad asked "What are you going to do now?" I had no answer, as I had been focused on that first step of being admitted tp practice law in a time when, in the Boston area, there was no "big law." I thought about that question from my immigrant Dad back then and over the years when I have taken other steps.

Based upon what I have learned from the Judge K confirmation process about his hi jinks drinking, partying, etc, as a teenager in a private high school, and then in college and law school, and his political legal career before becoming Judge K, his years on the DC Circuit bench, his testimony before the Senate Judiciary Committee pre- and post-Dr. Ford et al allegations, Judge K's appearance on Fox in between, and Judge K's sort of apology in his WSJ OpEd, Justice K, now that he has the job, may take some steps of atonement in his job performance. Justice K is a young man who may serve a score or more years on the Court, being well aware of the divisiveness in America that his confirmation has contributed to. The Constitution's Preamble looks to the future with its aim for a "more perfect Union," whereas Trump's (the president who appointed him) "Make America Great Again" looks to a past. Justice K may seek atonement by looking ahead to a "more perfect union" rather than Trump's rearview mirror. And, hopefully, the other Justices on the Court will also see this as occasion not to contribute to further political polarization. Even baby steps mayl help restore America as a beacon of democracy.

Barry Friedman has an interesting OpEd in the NYTimes on the Court with Justice K.

But there are great concerns beyond those of legal scholars with political polarization. Historian Christopher Browning's essay "The Suffocation of Democracy" in The New York Review of Books is very sobering and includes references to now Justice Kavanaugh. The essay looks comparatively at events during the period between WW I and WW II with the current situation culminating with the election of Trump and his performance as president. While the wealthy have benefitted from the Trump/GOP tax cuts of 2017 that would permit the wealthy to politically tithe the GOP led by Trump to keep their tax cuts in place, perhaps the wealthy may realize this may be short-term if the masses of non-beneficiaries of such tax cuts recognize and react to the burdens imposed on them by Trump/GOP with their Second Gilded Age.

Noah Feldman has an interesting take on Justice k over at Bloomberg News. As I read his column, it dawned on me that with every Justice K decision, opinion that is considered political may trigger replaying a video of then Judge K's continued Committee hearing screed against the left, the Clintons, Democrats not only by late nite comics but also cable TV news. A cynic might say that might please Justice K. But how might it look for the Roberts Court?

I was happy to see Prof. Dorf say his take right after the election of Trump was a bit too optimistic (I thought so at the time). He also is quoted over at Balkinization in a Marty Lederman piece that should make Sandy Levinson happy given its concerns about structural problems with the Constitution or the results thereof:

“For my money, both the baked-in counter majoritarian features of our system(especially the Senate) and the contingent ones (especially partisan gerrymandering in the House) do the damage they do chiefly because of the socio-political context in which we live. We happen to have the bad luck to live in a country in which the geographic distribution of social conservatives, racists, and tolerators of racism gives them disproportionate political power. Worse, the institutional structures we have also give those people an effective veto over changing that disproportionate power.”

I was under the impression that you believe the notion of the Supreme Court as a non-partisan institution is unrealistic, an illusion that should be swept away. I get that there is a tremendous partisan backlash against Kavanaugh, greatly exacerbated by the allegations and his response to them, but as you observe any other nominee would have been little different in terms of performance on the Court. Do you see this as an opportunity to disabuse colleagues of the dream of a non-partisan Court?

I appreciate your statement that "[d]ifferent people playing different roles will resolve such questions differently. Collectively, the response to Kavanaugh will be multifaceted, messy, and somewhat contradictory."

I think such messiness is common and I find it unconvincing when people try to reduce the responses of one side (so to speak) to simple logical terms. If only it were so easy to extrapolate beliefs and label those on one side as liars, cowards, and cynics. People are not so one-dimensional nor hive-minded.

The Federalist Society's role in adding Judge K to its list for Trump's consideration might be more closely examined. What were the circumstances for the addition? Was it suggested from outside The Federalist Society? To what extent was The Federalist Society aware, and when, regarding Judge K's hi jinks drinking, partying, etc, as a teenager in a private high school and as a college and law school student? I thought about this after reading:

"Conservatives Are Wrong to Gloat About Kavanaugh-Joining the frat party might be fun, but it will do great harm to the court and the country." By David Marcus, who is described as The Federalist's New York correspondent.

Was this an effort to pre-empt criticism of The Federalist Society and to suggest to its members not to gloat, at least openly? What if it turns out that The Federalist Society knew of Judge K's hi jinks when he was added to its list of conservative judicial appointees? As I understand it, The Federalist Society came about in the1970s by a group of conservative libertarians concerned with the judicial activism of the Warren Court and (to a lesser extent) the Burger Court (both CJs appointed by Republican presidents). The Warren Court's foundational decision was Brown v. Bd. of Educ. (Unanimous, 1954), which was followed by the civil rights movement and the 1960s Civil Rights Acts. Republican presidents Nixon, Reagan and Bush 41 had employed variations of the post-Civil Rights Acts Republican "Southern Strategy. The Federalist Society gained influence with the Reagan Administration; they both supported the originalism movement that started in the mid 1970s. Trump in his 2016 campaign and in his presidency has been openly beyond the Southern Strategy. Trump in his first year as president accepted The Federalist Society list, picking Gorsuch from a list that did not include Judge K. So what were the circumstances for the addition of Judge K this year? Might it have been Judge K's association with the Bush/Cheney Administration?

As a layperson, I had two major takeaways from the Kavanaugh confirmation.

1.) Winning the partisan fight is apparently the only thing that matters, and this will define all supreme court jurisprudence for the foreseeable future, regardless of party. To my mind, there is no legitimacy to the court in the face of an open partisan like Kavanaugh, who taints the reputation of the other 8 justices by association.

2.) Trump was almost right. Based on this confirmation hearing, Trump could openly shoot someone on the streets of Washington, D.C. and not even the U.S. Senate would condemn him.

As I told my daughter, now 22% of the court is men who were accused of sexual misconduct in the open during their confirmation hearings, but the Senate didn't care. For the moment, I guess the "women to accused sexual abusers ratio" on the court is still greater than one, but just barely.

Elsewhere in the legal blogosphere I would imagine SCOTUS "robing room humor," exchanges between Justices Scalia and Thomas. Maybe it's time to resume with Justices Thomas and Kavanaugh, but not today. Let's see, what might they have in common? Originalism?